Can I get custody if I was never married to the child’s mother?


I have a child with an ex-girlfriend. We have never been to court, but we have worked out a verbal agreement for custody and child support.

I don’t feel like this custody arrangement is working anymore and I would like to get full custody.

Is this possible since the mother and I were never married? Do I have any legal rights to the child?


Custody is based on a number of factors that help the court determine the best interests of the child involved. As I do not have all the facts of your specific case, I can only speak in generalities based on my experience with custody issues in other Indiana cases.

To begin a custody proceeding, one of the parents would file a petition for custody of the child, and the court would then hold a hearing to determine which parent should have custody.

In your case, before you can do this, it sounds like you would probably first need to formally establish paternity. This is necessary so that in the eyes of the court, you are established as the legal father of the child and have all of the rights (and responsibilities) that come with being the child’s father.

In Indiana, paternity can be established in only a few ways: 1) by marriage- the husband is presumed to be the father of the child if the parties are married at the time of the child’s birth; 2) by establishing paternity in a court proceeding; or 3) by executing a paternity affidavit, usually done at the time of the child’s birth.

You would establish paternity by filing a paternity action with the court, at which time you would present to the court your proof of paternity, which could be the written affidavit or a written agreement signed by you and the mother agreeing that you are the father, or a paternity test (which the court can order if either party requests it).

The court will also determine a child support amount once paternity has been established; you will want to be sure that you have proof of paying child support (any receipts of payment, journals, bank statements, etc.), in case the court makes the support amount retroactive (apply to the time before you filed the paternity action).

After paternity is formally established, you can then petition the court for physical custody of your child.  In Indiana, there is technically no joint physical custody; one parent is the custodial parent, and the other parent is the non-custodial parent. You can still split the parenting time each of you has with your son 50/50, or close to that, but by law, one parent must be the “custodial parent.”

The court will determine custody by looking at what would be in the best interests of your child, determined by several factors laid out in Indiana law. There is no presumption in Indiana that the mother is automatically the better custodian.

The factors the court would consider include:

  • The age and sex of the child;
  • The wishes of the child’s parents;
  • The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
  • The interaction and interrelationship of the child with the child’s parents, any siblings, and any other person who might significantly affect the child’s best interests (i.e. a girlfriend/boyfriend of either parent);
  • The child’s adjustment to home, school, and community;
  • The mental and physical health of all individuals involved; and
  • Any domestic violence history by either party.

You could also try to come to an agreement with your son’s mother on how to split up parenting time, and file that agreement with the court.

One option could involve your son spending time with you during the week so that you can help him with homework, etc., and then would she spend more time with him on the weekends.

Custody is a complex issue, and there are myriad ways that it can be resolved by the court or by the parties themselves through an agreement.

If you would like to discuss the issue further, Cordell and Cordell has men’s divorce lawyers in Indiana and we would be happy to schedule an initial consult with you to address any other questions or concerns you may have for your specific case.


Leslie Lorenzano is a Staff Attorney in the Indianapolis, Indiana office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Lorenzano is licensed in the state of Indiana and the U.S. District Court Sothern District of Indiana. Ms. Lorenzano received her Bachelor of Arts in Sociology from Purdue University, and her Juris Doctor from the University of Arizona – James E. Rogers College of Law.

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2 comments on “Can I get custody if I was never married to the child’s mother?

    Hello, I’m a mother of three… My first husband and the father to my first child died when she was 3. I got pregnant again for my second child, but I wasn’t married to the man. I gave birth to a girl. Her father and I planned to get married but he went behind my back and got married to another woman. We had a mutual agreement about how to handle the custody of our daughter. He provides child support and everything. He goes to his place for holidays. Now I’m married to my present husband and we have a son together. Last week my second daughter’s father sent a letter through a lawyer that said he wanted full custody of our daughter.. Saying I can’t provide enough for her. Financially he’s more buoyant than me. But I have a good paying job. And I provide for the need of all my children. What should I do please. Can he get full custody of my child even if we weren’t legally married.

    new law… bad for fathers in IN
    IC 31-14-13-1
    Sole legal custody in biological mother; exceptions
    Sec. 1. A biological mother of a child born out of wedlock has sole legal custody of the child, except as provided in IC 16-37-2-2.1, and unless a statute or court order provides otherwise under the following:
    (1) IC 12-26 (involuntary commitment of a child).
    (2) IC 29-3 (guardianship and protective proceedings under the probate code).
    (3) IC 31-14 (custody of a child born outside of a marriage).
    (4) IC 31-34 (child in need of services).
    (5) IC 31-37 (delinquent child).
    (6) IC 35-46 (offenses against the family).
    (7) IC 35-50 (criminal sentences).
    (8) An order by a court that has jurisdiction over the child.
    As added by P.L.1-1997, SEC.6. Amended by P.L.25-2010, SEC.2.

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